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“THE POLITICAL FIX- UNDERSTANDING THE CHILLING
EFFECT OF ANTI-DEFECTION LAW”
(A Project submitted towards the partial fulfillment of the course B.A., LL. B (Hons.) in the academic
year 20 19 - 2024 )
Submitted by: Supervised by:
Rounak Sinha Ms. Nibedita Basu
Roll no: - 91901040001 Assistant Professor
BA.LLB (Hons.) Constitutional Law-II
Faculty of Law, Marwadi University
Rajkot, Gujarat
DECLARATION I, ROUNAK SINHA certify that the work embodied in this project work, entitled of “THE POLITICAL FIX- UNDERSTANDING THE CHILLING EFFECT OF ANTI-DEFECTION LAW ” is my own bona-fide work carried out by me under the supervision of Ms. Nibedita Basu of Faculty of Law, Marwadi University. The matter embodied in this Project has not been submitted for the award of any other degree/diploma. I declare that I have faithfully acknowledged, given credit to and referred to the authors/ research workers wherever their works have been cited in the text and the body of the project. I further certify that I have not willfully lifted up some other's work, para, text, data, results, figures etc. reported in the journals, books, magazines, reports, dissertations, theses, etc., or available at web-sites and included them in this project work and cited as my own work. Signature of the Student Date: Place:
ACKNOWLEDGEMENT I would like to express my thanks to all the people who have helped me most throughout my project, be it directly or indirectly. I am most grateful to my teacher Ms. Nibedita Basu who actually inspired me to do this project by providing this opportunity. A special thank goes to my classmates who helped me out in completing the project, where they exchanged her own interesting ideas, and made me realize both the perspectives to the issue and thus made it possible to complete my project with all accurate information. I wish to thank my parents for their personal support or attention who inspired me to go my own way. Last but not the least, I would also extend my appreciation to those who could not be mentioned here but well played their role to inspire the curtain.
TABLE OF CONTENTS
Chapter 1. INTRODUCTION
1.1 Review of Literature
1.2 Statement of Problem
1.3 Objectives
1.4 Hypothesis
1.5 Research Methodology
Chapter 2. THE ORIGIN AND GENESIS OF ANTI-DEFECTION LAW
Chapter 3. COMBATING POLITICAL CORRUPTION: BARKING UP THE
WRONG TREE
Chapter 4. CONCLUSION
Chapter 5. BIBLIOGRAPHY & REFERENCES
(b) If, without prior permission of that particular political group, individual or authority and without such a vote or abstention, that political party, person or authority has not received any consent in fiftee, he votes, or refrains from voting in that House, against any direction from which that political party belongs or by any person or authority approved in this name. The preceding clause, as hereby stated, clearly shows that a member of a house is bound by the directives of his or her political party, and that anything that is contrary to the directive would result in disqualification. The Statement and Objects and Reason that was citied while enacting the Constitution (Fifty- second Amendment) Act, 1985 appended to the Constitution. It reads: “The evil of democratic defeats was a national problem. If it does not fight, it would probably destroy the very values and pillars of our society. The Bill is intended to exclude defection and fulfil this guarantee .”^4 Henceforth, this amendment was introduced to curb the political corruption in order to safeguard the fundamentals of democracy. But the grounds as enumerated in this provision can also be used as a ruthless tool for the curbing of any democratic liberty which is detrimental and disadvantageous to the government. Understanding the same provision under the light of parliamentary privileges sounds more critical.^5 Numerous nations over the world also have such laws that recognize the anti-defection laws. It is relevant to quote theexample of Constitution of Bangladesh which states under Article 70- “Vacation of seat in resignation or against a party- [A person who has been elected a parliamentary member at an election nominated by a political party as a candidate shall vacate his seat if he or she is a candidate. – (a) resigns from that party; or (^4) Retrieved from- https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india- fifty-second-amendment-act- 1985 , Retrieved on 04- 04 - 2021 (^5) Parliamentary privileges, well acknowledged as special rights, immunities and exemptions enjoyed by the two houses of Parliament, their committees and their members to secure the independence and effectiveness of their actions.
(b) Votes against the party in Parliament, but shall therefore not be excluded as a Member of Parliament for future elections]." The finer details of the above clause state that a member must resign or vote against his or her party's consensus. The same will be a barrier to free and independent legislative voting.The fact of upholding the stability of political parties, cannot be ignored for the good and accountable governance but restricting and limiting the scope of freedom of legislators in the parliament might cause a severe harm to the parliamentary democracy. Henceforth in thisresearch paper, the researcher will examine the aforementioned provisions in the light of the parliamentary democracy as well as parliamentary privileges which at some- extent provide ample amount of unbridled independence to the legislators. The paper will not be limited with the critical analysis but also make an attempt understand the merits and demerits of the said provision. The researcher will further discuss the relevant judgments and pronouncements, having nexus with the anti-defection laws. The paper will also portray the instances where the anti-defections laws have been used against the legislators Apart from that, every pertinent question arising out of the subject matter of will be discussed in the paper. 1.1 REVIEW OF LITERATURE Shammek Sen (2021), in article titled- Anti-Defection Law – Towards a Paradigm Shift attempted to understand the anti-defection law in the light of two recent observations of the Honorable Supreme Court. He said that these findings may have a major impact on changing the pedagogy of Indian politics in terms of the speaker's power in deciding whether or not a member of the legislative houses is disqualified for defection.^6 Kriti Anand (2017), in an article titled Misuse of Anti-defection Act quoted the examples of Sharad Yadav and Ali Anwar who had been disqualified by the chairman of Rajya Sabha (Upper-House of the Indian Parliament). This article basically questions the constitutional validity of the orders passed by the Venkaiah Naidu on the several grounds. Also, in this article, it has been argued by the author that the misuse of anti-defection act is continued.^7 (^6) Shammek Sen, Anti-Defection Law – Towards a Paradigm Shift, 56 Economically & Politically Weekly (2021) (^7) Kriti Anand, Misuse of Anti-defection Act, Indian folk (2017)
1.5 RESEARCH METHODOLOGY Research Design: In view of the aims mentioned above, the design of exploratory research was adopted. It focuses on the study and evaluation of the present and available records, as well as on the application of secondary evidence. Exploration research is one that interprets much of the available information. Source of Data: - The study is based on secondary data. which includes referring to various books, journals, websites and reports to gather knowledge on the subject. In this research secondary research conducted, with the help of books, journals, and information available in websites and other published sources. The research paper will be done with the help of reports of committees and journals articles related with the research problem. Tools of Analysis: - The data gathered for the analysis were logically and meaningfully interpreted so that significant conclusions can be reached.
CHAPTER 2
THE ORIGIN AND GENESIS OF ANTI-DEFECTION LAW
Political parties can be called as the chief and responsible architect of democratic phenomenon as they are very important in the building of democratic institutions. It is the undisputed fact that India or the people of India subscribes the wide range of political parties where these parties simply act as agents of people by catering the needs and concerns of the people by various means. This is one of the encouraging practices for the construction of healthy democracy. In a democratic country like India, the political parties have several functions and obligations which they are supposed to discharge. One of most important function is to go into the elections where people actively participate and elect their representatives. The vibrantIndian democracy is based on the principle of free and fair election mechanismso that a transparent and accountable government can be established. However, the past and recent developments are contrary to the objectives of free and fair election or the formation of transparent and accountable government, where the lust of power can easily be found in the eyes of political leaders and parties and that’s why defections are a matter of concern. To begin with, let's define defection: it's a process in which an individual abandons or withdraws his allegiance or duty. This practice is known as 'floor crossing,' and it originated in the British House of Commons, where a legislator switched allegiances by crossing the floor and moving from the Government to the opposing side, or vice versa.^8 The law on defection has been adopted in order to curb the widespread pattern in which parliamentarians have left their original parties to join the rival political groups. It was applied to the importance of stopping defecation as a means for engineering the overthrow and development of regimes. The anti-defeat law was thus seen as a reaffirmation of the principles of democracy in India, ensuring that government decision-making was only influenced by citizens.
Defections in India
(^8) Supra 3
only led to great instability and uncertainty, it also raised ethical questions. Defections, it was realized, were undemocratic, negated the electoral verdict by allowing parties which fail to get the mandate to gather a majority in the house and form a government with the help of defectors, forcing the majority party to sit in the opposition Rationale Behind the Law Partisan defection took place both within the Commonwealth and beyond it. In consequence, several parliaments have tried to address the topic in law. Generally speaking, the explanation for the enactment, in particular in a legislative manner of government, of an anti-defection law which provides for punitive measures against a Member who flips the party following an election. This bill seeks to provide security, in the event of an allegiance transition that results in instability, for both government and opposition. Governments have collapsed in the past as a result of defections or splits within political parties. In Sri Lanka, for example, the government fell due to defection on two occasions, in 1964 and 2001. Governments have often collapsed due to defection or a split in a political party elsewhere in the world, including in the United Kingdom, where there is no anti-defection legislation. Even after the Anti-defection law went into effect in India, there were still cases of defection. Political defections have brought down governments in a number of states, including Goa in 1989, Sikkim in 1994, and Arunachal Pradesh in 1999 and 2003. These examples are intended to be illustrative rather than exhaustive.^11 In western democracy, most parliamentarians are elected on the basis of party manifestos and with the assistance and help of their parties. Constituent constituents vote for candidates not only for their own properties, but also for the platforms and programmes of their parties. Consequently, a successful nominee is bound by his campaign's electoral pledges. He must be loyal to his party and obey the organization's guidelines. He must also resign as a candidate if he wants to leave the party. On the other hand, there is a school of thought that believes anti-defection laws limit members of Parliament's ability to exercise their duties and interfere with their right to freedom of speech and expression. (^11) O.C. Malhotra Cabinet Responsibility to Legislature: Motions of Confidence and Non-Confidence in Lok Sabha and State Legislatures (Delhi: Metropolitan, 2004) pp 187 to 206 and 775 to 790.
Given that this does not exist, the House, which comprises the Representatives who are accountable not only to their political parties but also to the electorate, is also to be held accountable, thus stabilising the government is required. EVOLUTION OF ANTI-DEFECTION LAW IN INDIA A private member's resolution moved in the Fourth Lok Sabha on August 11, 1967, by Shri P. Venkatasubbaiah, sparked efforts to put forward legislation in India to address the problem of defections. When Shri P. Venkatasubbaiah's resolution in the Lok Sabha was being debated, the propriety of legislators switching parties and crossing the floor on a regular basis, as well as their effect on the growth of Parliamentary democracy, were hotly debated at the Presiding Officers' Conference in New Delhi on the 14th and 15th of October 1967.Following extensive deliberation, the Presiding Officers' Conference delegated the task of preventing defections to political parties and the government. The resolution of Shri Venkatasubbaiah was debated in the Lok Sabha on November 24 and December 8, 1967. The resolution read as follows in its final form, as passed unanimously by the Lok Sabha on December 8, 1967:: - “This Parliament considers that the government should instantly establish a high-level Committee comprising members of political groups and constitutional experts to address the issue of lawmakers transferring their loyalty from party to party and often crossing over the floor and making recommendations in this respect in all its aspects.” In consonance with the opinion expressed in the resolution, a Committee on Defections, as mentioned earlier, was set up by the Government under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan. On February 18, 1969, the report of the Committee was tabled at Lok Sabha. In order to establish and track their compliance by consultations among political parties, the committee, consisting of the parliamentary and state legislatures, proposed that a committee be set up to draw up a code of ethics for political parties with an emphasis on defections. The committee described a "defector" as "an elected legislator, assigned the symbol of a political party, who voluntarily waives all allegiance to or associating with such a political Party after being elected as a member of either Parliament, Legislative Assembly or Legislative
The Joint Committee of the Houses of Parliament became defunct upon dissolution of Fifth Lok Sabha on 18 January 1977. The Constitution (Forty-eighth Amendment) Bill. 1978 On 28 August 1978, another attempt was made in this direction by bringing forward the Constitution (Forty-eighth Amendment) Bill, 1978 in Lok Sabha. Several members belonging to both ruling party and opposition parties opposed the Bill at the introduction stage itself.The members took serious objections to the alleged misrepresentation of facts in the Statement of Objects and Reasons inasmuch as the members were not consulted over the provisions of the Bill, whereas the Statement of Objects and Reasons of the Bill said "the problem cuts across all parties. It has been examined in consultation with the leaders of political parties” Some salient features of the Bill were the following: - a) Independent and nominated members were allowed to join political parties after election only once. b) A member belonging to a political party would be disqualified if he voluntarily gave up the membership of the political party to which he belonged or he was expelled from the party for voting against party direction without prior permission subject to expulsion within 30 days from such voting. c) In case one-fourth of the members of legislature party or where the strength was less than 20, not less than five members formed a new political party and such party had been recognized by the PresidingOfficer or registered with the Election Commission, the members of the new political party would not be disqualified. d) The Bill applied to the members of those political parties only, which were registered with the Election Commission or recognized by the Presiding Officer. In view of stiff opposition, the Minister withdrew the motion for leave to introduce the Bill by the leave of the House. Introduction of Anti-defection Law: 52nd^ Amendment Act of 1985 Rajiv Gandhi Government introduced the Constitution (52 Amendment) Bill on January 23, 1985 which was adopted by the Lok Sabha on January 30 and by the Rajya Sabha, the
subsequent day.^14 Thus, the Constitution (52nd Amendment) Act, 1985 was claimed to be historic as it was adopted on the day commemorating Mahatma Gandhi's martyrdom, as a tribute to his memory. This Act amended the Articles 101(3)(a), 102(2), 190(3) and 191(2) of the Constitution which deal with the matters related to vacation and disqualifications of seats in Parliament and State Legislatures, and added the Tenth Schedule thereto. The Members of Parliament and State Legislatures were henceforth subject to disqualification under the Tenth schedule due to the following provisions: A member of a House belonging to any political party shall be disqualified for being a member of the House— a) If he has voluntarily given up his membership of such political party; or b) if, without prior permission from that party or authority, it votes in or abstracts the vote of any direction issued by that political party, or by any other person or authority approved by it in the name thereof, and the vote or abstention thereof has, in either case, not been withdrawn from by that political party, person or authority within fifteen months;.^15 The Schedule also provides for disqualify an independent member of a house if, after those elections, it joins any party, while a designated member shall be disqualified if, after six months have expired from his seating in the house, he joins any party.^16 The disqualification of a member of a house on the ground of defection is exempted in the case of: - a) A Merger of his original party with another party, only if such a merger has been approved by not less than two-thirds of the members of his legislature party in the house. b) It is pertinent to note here that the members reluctant to such a merger do not lose their membership of the house and are permitted to function as a separate group.^17 c) A member elected to the office of the Presiding Officer (Speaker/ Dy. Speaker of the lower house; or Chairman/Dy. Chairman of the upper house) voluntarily gives up the (^14) Pradeep Sachdeva, Combating Political corruption: A Critique of Anti-Defection Legislation, 50 The Indian Journal of Political Science 157, 160 (1989), available at https://www.jstor.org/stable/41855903, last seen on 04/04/ (^15) Schedule 10, 2(1) The Constitution of India (^16) Schedule 10,2(3) The Constitution of India (^17) Schedule 10,4 The Constitution of India
Subsequently, all the defectors were rewarded with minister-ships and a jumbo-sized council of ministers comprising of 94 ministers was established. Alleging the biased behavior of the Speaker of the UP Legislative Assembly, in adjudicating the defection proceedings, the BSP approached the Supreme Court. In the Mayawati judgement,^22 the court disqualified the 12 defecting BSP MLAs on the ground that there was no split as per the provision of Paragraph 3 of the Tenth Schedule. Against the backdrop of the Mayawati judgement, the 170 Report of The Law Commission of India (1999) observed, “the provision relating to 'split' has been abused beyond recall” and recommended the deletion of Paragraph 3 of the Tenth Schedule. Similarly, the Dinesh Goswami Committee Report,1990 and the National Commission to Review the Working of the Constitution (NCRWC) Report, 2002 made detailed recommendations to ameliorate the Anti- Defection legislation.^23 Thus, The Constitution (Ninety-First Amendment) Act, 2003 was enacted which, provided: inter alia-
- No more than 15% of the total members of the Council of Ministers shall be members of the respective lower houses including the Prime Minister (within the Central Government) and the Chief Minister (within the State government).^24
- Any member of the Parliament, or of the State Legislature, who is not eligible under paragraph2 of the tenth Schedule for membership of the House shall also be barred from appointment as a minister for the time starting on the day on which his term of office expires or when he is contesting a seat in that House.^25
- The omission of paragraph 3 of the Tenth Schedule to the Indian Constitution.^26 (^22) Mayawati v. Markandeya Chand,AIR 1998 SC 3340 (^23) 4170th Law Commission of Law Commission of India Report, Reform of Electoral Laws, (1999), available at https://www.lawcommissionofindia.nic.in/lc170.htm, last seen on 05/04/ (^24) Indian Polity, 72.3 (M. Laxmikanth, 5 ed., 2017.) (^25) Ss. 2(1B), 3(1B), The Constitution (Ninety-First Amendment) Act, 2003 (^26) S. 5©, The Constitution (Ninety-First Amendment) Act, 2003.
